Empire Ranch & Cattle Co. v. Herrick

• Decision Date: 10 June 1912
• Court: Colorado Court of Appeals
• Parties: EMPIRE RANCH & CATTLE CO. v. HERRICK et al.

124 P. 748

22 Colo.App. 394

EMPIRE RANCH & CATTLE CO. v. HERRICK et al.

Court of Appeals of Colorado

June 10, 1912

Appeal from District Court, Yuma County; H.P. Burke, Judge.

Action by the Empire Ranch & Cattle Company against Albert C Herrick and another. From a judgment for defendants plaintiff appeals. Affirmed.

August Muntzing and Eghert More, both of Akron, for appellant.

John F Mail, of Denver, for appellees.

CUNNINGHAM J.

The appellant instituted its action in the county court to quiet title to certain lands. From an adverse judgment, it appealed to the district court, where again judgment went against it from which latter judgment this appeal is prosecuted.

The complaint alleged that the plaintiff was the absolute owner and in possession of the lands in question, but made no other reference to the nature or character of its title. The answer alleged that the defendants were the owners in fee simple of the land by various mesne conveyances from the government, but contained no prayer, and asked for no relief. In the replication plaintiff alleges that its title is based upon a tax deed, and the five and seven year statutes of limitation are pleaded; but whether these statutes are well pleaded it is not necessary to determine. On the trial in the district court, appellant, for the purpose of proving title to the land in question, offered in evidence its tax or treasurer's deed. Objection to the introduction of said deed was interposed by counsel for defendants (appellees) on the ground that the deed was void on its face. The trial judge sustained the objection, whereupon counsel for plaintiff advised the court that it desired to submit to a voluntary nonsuit, and accordingly a judgment of nonsuit was entered against it. Thereupon defendants asked leave to prove their title to the land in controversy, and have the same quieted as against the treasurer's deed held and offered by the plaintiff. Plaintiff objected to any further proceeding after nonsuit had been entered against it, and in the brief no other question is argued. The deed offered by the plaintiff corporation was clearly void on its face, for various reasons, which fact is practically conceded by the appellant.

1. The only question before us for determination is: Was the trial court warranted in taking proof, after having entered a nonsuit against the plaintiff, for the purpose of determining whether the defendants had good title to the land; and thereafter, having found that the defendants did have good title to the land, was the trial court warranted in entering a judgment in their favor, quieting their title as against the treasurer's deed then held by the plaintiff? The only title that appellant claims was based upon the void tax deed. When, at its own request, it was nonsuited, it went out of court voluntarily, and, having no title whatever to the land (the seven-year statute of limitations not having run), it was not injured by the decree which the trial court thereafter rendered in favor of appellees. Even if the trial court went too far in rendering a decree in favor of appellees, appellant is in no position to complain. "In any event, we do not regard the appellant as in a position to complain of the judgment quieting the defendants' title, when it was found to have no title or interest in the property. It was adjudged to belong to the defendants, and appellant is unharmed by the decree. Should the judgment appear to affect the rights of other persons, who were not parties to the suit, and the judgment is a cloud upon their title, they would, of course, be unaffected by it, and in a proper way could remove it." Baca v. Wootton, 8 Colo.App. 96, 44 P. 851; Foster v. Clark, 121 P. 130.

2. In view of the conclusions we have already announced, the controversy over the nonsuit might be left undetermined; but, inasmuch as counsel have vigorously pressed this matter upon our attention, we have concluded to consider and dispose of it. Counsel for appellant say that the nonsuit in this case was had under the fourth subdivision of section 166 of the Code (section 183, Rev.Code), which subdivision reads as follows: "An action may be dismissed or a judgment of nonsuit entered: *** Fourth--By the court, when upon trial, and before the final submission of the case, the plaintiff abandons it." The first subdivision of section 166 provides for a nonsuit, on motion of the plaintiff, at any time before trial, and upon payment of costs, providing a counterclaim has not been made. The nonsuit contemplated by the fourth subdivision of section 166, which we have just quoted, is by the court--in the court's discretion--providing the plaintiff has abandoned the case. The nonsuit in this case was entered upon the trial, and not before the trial, and before the plaintiff had abandoned the case, since it was entered upon its motion and its earnest and repeated request. The motion for nonsuit can be no more than an offer to abandon, at most. It is not an abandonment of the case; for, if the nonsuit be denied, the plaintiff may conclude to remain in the case and contest it to the end. Hence the Code provision invoked by appellant affords it no shelter, as we read the record. We think the appellant had no right under the Code to move for a nonsuit upon the trial, or during the course of the trial, and the court should have denied its motion. The phrase "before trial," as used in the first subdivision of section 183, Rev.Code, does not mean before the conclusion of the trial, but before the commencement of the trial. Winship v. People, 51 Ill. 298; Flemming v. Fire Association, 76 Ga. 679; Jifkins v. Sweetzer, 102 U.S. 179, 26 L.Ed. 129; Bettis v. Schreiber, 31 Minn. 331, 17 N.W. 863. In the last authority cited, the Supreme Court of Minnesota says: "After the plaintiff had rested, and one witness had been examined on behalf of defendant, plaintiff interposed a motion to dismiss the action, which was overruled by the court. The plaintiff bases his right to dismiss upon Gen.St. 1878, c. 66, § 262, subd. 1, and insists that the words 'before trial,' in that section, mean before the submission of the case to the court or jury. But this would evidently do away with any distinction, as respects the time for such dismissal by the plaintiff, between subdivisions 1 and 3 of the section." (Subdivisions 1 and 3 of the Minnesota statute referred to are almost identical with subdivisions 1 and 4 of our Code provision to which we have already called attention.) Continuing, the Minnesota Supreme Court, in the Bettis Case, says: "The words 'before trial' mean before the commencement of the trial."

But whether our conclusion in this respect be universally applicable to motions for nonsuit when made by a plaintiff, there can be no doubt of its soundness when applied to actions to quiet title. Such proceedings are, in a sense, sui generis. By the weight of authority, actions to quiet title are properly classified as actions in rem, or quasi in rem. 17 Enc.Pl. & Pr. 294; Black on Judgments, vol. 2 (2d Ed.) § 793. Nor do such actions lose their equitable nature because, by statute, the procedure has been somewhat modified, and its scope enlarged, so as to permit them to be pursued by a plaintiff out of possession. Costello v. Mulheim, 9 Ariz. 422, 84 P. 906.

Proceedings of this nature may be instituted under the Code (section 274 Rev.Code) for...